A recuperação judicial do produtor rural

Por Estadão

A recuperação judicial no agronegócio, setor que responde por 30% do PIB brasileiro, ganhou força com uma decisão recente do Tribunal de Justiça de São Paulo. Os desembargadores mostraram que encaram o produtor rural como empresário de fato, apto a fazer recuperação judicial, mesmo sem registro há dois anos na Junta Comercial.

A decisão do TJ paulista, publicada no dia 11 de maio no Diário Oficial, referente ao Agravo de Instrumento nº 2251128-51.2017.8.26.0000, reconheceu que 14 produtores rurais têm direito a recuperação judicial.É fato que nos últimos 13 anos, tempo de vigência da Lei de Recuperação de Empresas, 5.359 empresas da indústria, comércio e prestação de serviços ajuizaram pedido de recuperação judicial. No entanto, o produtor rural, pessoa física, responsável pelo mencionado percentual de 30% do PIB do país, estava até agora alijado no cenário da recuperação judicial.

E tudo isso pelo questionável fundamento de não possuir registro na Junta Comercial há pelo menos dois anos – ainda que fosse empresário há muito mais tempo.

Na falta de melhor argumento, a culpa sempre foi jogada na formalidade burocrática, somada a uma janela de tempo inócua, para justificar que produtor rural não seria empresário, mesmo com a reconhecida importância deste para a produção do país.

O pior é que, para manter essa barreira, a responsabilidade foi atirada também no próprio produtor rural – que, em tese, teria juros mais baixos para plantar. Isso no país com os juros mais altos do mundo, depois de Madagascar.

É importante ressaltar que o financiamento da safra faz com que 40% da produção agrícola atual não consiga pagar sequer o serviço da dívida.

Seria como trabalhar 24 horas, sabendo que o custo exige 25 horas de trabalho por dia. Pronto, não fecha a conta. Mas, fechando os olhos, é possível continuar nesse cenário injusto para o produtor rural.

O Senado Federal aprovou, recentemente, o Projeto de Lei 285/2011 – que permite o requerimento da recuperação judicial sem apresentação de certidões negativas de débitos tributários. Isso até significa um ponto importante para devedores que são microempresa e empresa de pequeno porte.

No entanto, o projeto de lei não abrangeu esse problema específico de produtores rurais sem registro na Junta Comercial há dois anos.

Foi necessário o Tribunal de Justiça de São Paulo se posicionar para que, de agora em diante, todos tenham maturidade para encarar esse problema de frente.

Produtor rural é empresário. Por isso, deve submeter-se aos mesmos procedimentos que qualquer empresário – com os bônus e os ônus. Agora, não existem mais motivos para a Justiça restringir a interpretação do conceito de empresário nos casos de produtores rurais.

É preciso lembrar que, há exatos oito anos, o Tribunal de Justiça de São Paulo negou esse direito a fazendeiros de Palmital (SP).

Mas, atualmente, adotou uma nova e mais madura posição de puxar a locomotiva do progresso com a autorização para produtores rurais, sem registro há dois anos, participarem de recuperação judicial.

Os produtores rurais foram equiparados a empresas industriais, muitas vezes as mesmas que, por estarem em recuperação judicial, causaram a crise financeira para eles.

A mudança na visão do Judiciário vem em boa hora.

Desde 2013, com o voto da ministra Nancy Andrighi, no REsp nº 1.193.115/MT, o assunto não encontrou nos tribunais estaduais um desfecho de tamanha envergadura.

Por acaso do destino, o voto condutor baseou-se também na tese intermediária defendida pelo ministro Sidnei Beneti, no mesmo REsp.

O entendimento foi o de que havia necessidade de registro do produtor rural na Junta Comercial. Contudo, esse registro poderia ser feito até um dia antes do ajuizamento do pedido de recuperação judicial.

A expectativa é que todos os tribunais estaduais do país passem a adotar a tese do TJ de São Paulo, onde praticamente todos os bancos possuem sede.

Afinal, o produtor rural precisa de um sistema legal para reestruturar suas dívidas.

Não é um benefício para prejudicar o sistema financeiro e sim um instrumento para reorganizar um problema de todos devedores e, inclusive, dos próprios bancos.

*Sócio-fundador da ERS Consultoria, Sociedade de Advogados

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